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THE INTERNATIONAL LAW FRAMEWORK REGULATING THE USE OF ARMED DRONES*

  • Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne and Thompson Chengeta
Abstract

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.

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Footnotes
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This is a much expanded version of a report presented by Christof Heyns to the UN General Assembly on 25 October 2013, A/68/30532, available at <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-47_en.pdf> or <http://www.un.org/ga/search/view_doc.asp?symbol=A%2F68%2F382&Submit=Search&Lang=E>. We would like to thank the participants at the expert meeting on ‘Armed Drones and the Right to Life’ hosted by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations in July 2013.

Footnotes
References
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1 Heyns Report on Lethal Autonomous Robots, 9 April 2013, A/HRC/23/47, available at <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-47_en.pdf >.

2 See Simonis, F and Schilthuizen, S, Nanotechnology: innovation opportunities for tomorrow's defence (TNO Science and Industry 2006).

3 Singer, PW, Wired for War (Penguin 2009); Rogers, P, Unmanned Air Systems: The Future of Air & Sea Power? (Institut Français des Relations Internationales 2014); Gertler, J, U.S. Unmanned Aerial Systems (Congressional Research Service 2012) 3; US Department of Defense, ‘Unmanned Systems Integrated Roadmap’, FY2013-2038 (2013) 19, available at <http://www.defense.gov/Portals/1/Documents/pubs/DOD-USRM-2013.pdf>. See O'Gormann, R and Abbott, C, Remote control war: Unmanned combat air vehicles in China, India, Israel, Iran, Russia and Turkey (Open Briefing, London 2013) available at <http://issuu.com/openbriefing/docs/remote_control_war>; Joshi, S and Stein, A, ‘Emerging Drone Nations’ (2013) 55 Survival 53; G Taylor, ‘U.S. intelligence warily watches for threats to U.S. now that 87 nations possess drones’, The Washington Times, 10 November 2013, available at  <http://www.washingtontimes.com/news/2013/nov/10/skys-the-limit-for-wide-wild-world-of-drones/?page=all>.

4 See PW Singer, ‘The Predator Comes Home: A Primer on Domestic Drones, their Huge Business Opportunities, and their Deep Political, Moral, and Legal Challenges’, Brookings Institution, 8 March 2013, available at <http://www.brookings.edu/research/papers/2013/03/08-drones-singer>; US Department of Defense, ‘Task Force Report: The Role of Autonomy in DoD Systems’ (Defense Science Board, July 2012) 78, available at <http://www.acq.osd.mil/dsb/reports/AutonomyReport.pdf> .

5 See UN Doc A/68/389, paras 25–40 and C Dillow, ‘All of These Countries Now Have Armed Drones’, Fortune, 12 February 2016, available at <http://fortune.com/2016/02/12/these-countries-have-armed-drones>.

6 The Bureau of Investigative Journalism, Covert Drone War (2014) available at <http://www.thebureauinvestigates.com/category/projects/drones/>.

7 ibid.

8 ibid.

9 This is not the case, for example, with lethal autonomous robots. See Heyns Report (n 1).

10 Hill-Cawthorne, L, ‘The Role of Necessity in International Humanitarian and Human Rights Law’ (2014) 47 IsraelLRev 225.

11 Heller, KJ, ‘One Hell of a Killing Machine, Signature Strikes and International Law’ (2013) 11 JICJ 89, 91; Melzer, N, Targeted Killing in International Law (OUP 2009) 51–2.

12 M Milanovic, Drones and Targeted Killing: Can Self-Defense Preclude their Wrongfulness? EJIL: Talk! (10 January 2010) available at <http://www.ejiltalk.org/drones-and-targeted-killings-can-self-defense-preclude-their-wrongfulness/>.

13 On the non-availability of self-defence as a circumstance precluding wrongfulness for breaches of IHL and IHRL, see International Law Commission (ILC), ‘Commentary to art 21, Articles on Responsibility of States for Wrongful Acts’ (2001) UNYBILC vol II, Pt Two; and Crawford, J, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (CUP 2002) 166.

14 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, para 68.

15 The erga omnes nature of IHL can be seen in arts 1 of the 1949 Geneva Conventions and of Additional Protocol I of 1977 which impose on States an obligation not only to respect these treaties to but ‘ensure respect’ of the treaties. The 2016 ICRC Commentaries to art 1 of Geneva Conventions states that: ‘The interests protected by the Conventions are of such fundamental importance to the human person that every High Contracting Party has a legal interest in their observance, wherever a conflict may take place and whoever its victims may be… . The Conventions thus create obligations erga omnes partes, i.e. obligations towards all of the other High Contracting Parties.’ [para 119] The ICRC Commentary to art 1 of Additional Protocol I also states that: ‘the [Diplomatic] Conference clearly demonstrated that humanitarian law creates for each State obligations towards the international community as a whole (‘‘erga omnes’’); in view of the importance of the rights concerned, each State can be considered to have a legal interest in the protection of such rights’ (para 45). The ICRC Commentaries are available at <http://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&articleUNID=6C86520D7EFAD527C12563CD0051D63C>.

16 Similarly, the erga omnes nature of these obligations means countermeasures may not preclude wrongfulness for breaches of obligations under IHL and IHRL. See eg Borelli, S and Olleson, S, ‘Obligations Relating to Human Rights and Humanitarian Law’ in Crawford, J, Pellet, A and Olleson, S (eds), The Law of International Responsibility (OUP 2010).

17 The ILC has made it clear that: ‘In circumstances where the consent of a number of States is required, the consent of one State will not preclude wrongfulness in relation to another’: ILC, ‘Commentary to art 20, Articles on Responsibility of States for Wrongful Acts’ (2001) UNYBILC vol II, Pt Two, paras 9 and 10.

18 It has been suggested that a State cannot invite another State to assist it in a civil war, such that where the domestic situation is so severe, the de jure government would not be able to consent to force being used on its territory by another State: see Gray, C, International Law and the Use of Force (OUP 2008) 81. However, this rule is supposedly derived not from the prohibition of the use of force but rather from the principle of non-intervention or perhaps the right of self-determination. In any event, it is not clear that there is sufficient State practice and opinio juris for such a limitation of the consent principle to be regarded as a part of international law: see Dinstein, Y, War, Aggression and Self-Defence (CUP 2011) 119; D Akande and Z Vermeer, ‘The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars’ EJIL: Talk! (2 February 2015); and R Van Steenberghe, ‘The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against the Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer’ EJIL: Talk! (12 February 2015).

19 Byrne, M, ‘Consent and the Use of Force: An Examination of ‘‘Intervention by Invitation’’ as a Basis for US Drone Strikes in Pakistan, Somalia and Yemen’ (2016) 3 Journal on the Use of Force and International Law 97.

20 The controversies surrounding the issue of consent more generally are discussed in Crawford, J, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (CUP 2002) 163–5.

21 See Corten, O, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart 2010) 259: ‘In the case of a military operation, no one contests that only the highest authorities of the State are able to issue such consent validly. It is only on this condition that it can be claimed that a use of force is not directed against the State's independence and so does not violate article 2(4).’

22 See ILC, ‘Commentary to art 20, Articles on Responsibility of States for Wrongful Acts’ (2001) UNYBILC vol II, Pt Two, para 5.

23 The ILC has stated that: ‘Who has authority to consent to a departure from a particular rule may depend on the rule. It is one thing to consent to a search of embassy premises, another to the establishment of a military base on the territory of a State. Different officials or agencies may have authority in different contexts, in accordance with the arrangements made by each State and general principles of actual and ostensible authority’: ibid, para 6.

24 It has also been argued that where a State's actions on another's State's territory are consented to by the latter, the former should inquire into whether this consent complies with the latter's domestic law: Deeks, A, ‘Consent to the Use of Force and International Law Supremacy’ (2013) 54 HarvIntlLJ 1.

25 Art 7 of the 1969 Vienna Convention on the Law of Treaties.

26 Arrest Warrant of 11 April 2000 (DRC v Belgium) [2002] ICJ Rep 3, paras 53–55; Akande, D and Shah, S, ‘Immunities of State Officials, International Crimes and Foreign Domestic Courts (2010) 21 EJIL 815, 818ff.

27 Corten (n 21) 266: ‘In respect of all the precedents just examined, it appears clearly that, to be validly given, consent to external intervention must have been given by the highest authorities of the State such as the Prime Minister, the President or the Government as a whole.’

28 ‘Consent to the commission of otherwise wrongful conduct may be given by a State in advance or even at the time it is occurring. By contrast, cases of consent given after the conduct has occurred are a form of waiver or acquiescence, leading to loss of the right to invoke responsibility’: ILC, ‘Commentary to art 20, Articles on Responsibility of States for Wrongful Acts’ (2001) UNYBILC vol II, Pt Two.

29 See ibid, para 6.

30 ibid, para 9: ‘where consent is relied on  …  it will be necessary to show that the conduct fell within the limits of the consent’.

31 See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168, para 105, where the ICJ took the view that Ugandan presence in the DRC was unlawful from the moment when consent was withdrawn (despite an agreement setting out modalities for withdrawal).

32 The US and UK, for example, rely on self-defence: US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or an Associated Force’ (made public 5 February 2013); E MacAskill, ‘Drone killing of British citizens in Syria marks major departure for UK’, The Guardian, 7 September 2015.

33 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14, para 191; Case Concerning Oil Platforms (Iran v United States) [2003] ICJ Rep 161, paras 51, 62.

34 The ICJ has on numerous occasions highlighted the need for a response to an armed attack to be necessary and proportionate for that to constitute lawful self-defence: see Nicaragua (n 33) para 194; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] IC Rep 226, para 41; Oil Platforms (n 33) para 74; DRC v Uganda (n 31) para 147.

35 Gray (n 18) 150; see also Randelzhofer, A, ‘Article 51’ in Simma, B et al. (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) Akande, D and Liefländer, T, ‘Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense’ (2013) 107 AJIL 563, 569.

36 The manner in which the requirements of necessity and proportionality have been invoked by the ICJ confirms this interpretation of the purpose of lawful self-defence: see eg Nicaragua (n 33) para 237 (holding that US actions in and against Nicaragua were not necessary as the threat to the Salvadorian government had already been curbed by other means); Oil Platforms (n 33) para 76 (holding that the US attacks against Iranian oil platforms were not necessary to respond to the attacks against US ships); see also Legality of the Threat or Use of Nuclear Weapons (n 34), Dissenting Opinion of Judge Higgins, para 5 (‘the concept of proportionality referred to was that which was proportionate to repelling the attack, and not a requirement of symmetry between the mode of the initial attack and the mode of response’).

37 Oil Platforms (n 33), Dissenting Opinion of Judge Elaraby, para 1.2.

38 Oil Platforms (n 33).

39 Report of the High-Level Panel Established by the UN Secretary-General (December 2004) UN Doc A/59/565 (2004) at 188–92.

40 ibid.

41 Attorney-General's Advice on the Iraq War, Iraq: Resolution 1441’ (2005) 54 ICLQ 767, 768.

42 Letter from Mr. Webster to Lord Ashburton, August 6, 1842 in Jennings, RY, ‘Caroline and McLeod Cases’ (1938) 32 AJIL 82.

43 Gray (n 18) 160–1.

44 Contrast the US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or an Associated Force’ (5 February 2013).

45 See references above at nn 3–6 for news articles detailing drone strikes by the UK and US against non-State actors in a number of different countries.

46 See discussion of pre-9/11 practice in Gray (n 18) 195–8.

47 Nicaragua (n 33) para 195.

48 See eg the US’ letter to the Security Council under art of the UN Charter, in which it referred to its right to self-defence against al-Qaida and the Taliban regime in Afghanistan that was allowing its territory to be used by al-Qaida: UN Doc S/2001/946. The same claim was made by the UK: UN Doc S/2001/947.

49 UN Security Council Resolution 1368 (12 September 2001) S/RES/1368 (2001), preambular para 3; Security Council Resolution 1373 (28 September 2001) S/RES/1373 (2001), preambular para 4.

50 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, para 139. It is to be noted that art 51 does not, in fact, condition the notion of armed attack as emanating from a State only.

51 For example, since 9/11 one may refer to Uganda and Rwanda's use of force in the DRC; Kenya and Ethiopia's use of force in Somalia; Russia's use of force in Georgia; Israel's use of force against Hezbollah in Lebanon; Turkey's repeated use of force in northern Iraq; Saudi Arabia's use of force in Yemen; Colombia's use of force in Ecuador; the use of force by many States in Syria against ISIS. As Christian Tams notes, ‘[t]he situations in which force has been used (or a corresponding right has been asserted) vary considerably, but have almost exclusively been explained as exercises in self-defence’: Tams, C, ‘The Use of Force against Terrorists’ (2009) 20 EJIL 359, 378.

52 See generally, Tams ibid 359; Deeks, A, ‘‘‘Unwilling or Unable’’: Toward a Normative Framework for Extraterritorial Self-Defense’ (2012) 52 VaJIntlL 483 and Hakimi, M, ‘Defensive Force against Non-State Actors: The State of Play’ (2015) 91 International Law Studies 1; Lubell, N, Extraterritorial Use of Force Against Non-State Actors (2010 OUP) Pt I.

53 Trapp, K, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against Non-State Terrorist Actors’ (2007) 56 ICLQ 141; Bethlehem, D, ‘Self-Defense Against an Imminent or Actual Armed Attack by NonState Actors’ (2012) 106 AJIL 770, 776.

54 Bethlehem ibid.

55 Nicaragua (n 33) para 235; DRC v Uganda (n 31) 222, para 145.

56 ibid, para 200.

57 Randelzhofer (n 35) 804.

58 Unless the non-State group acts on behalf of a foreign State, in which the conflict would be international.

59 Thus, the wording of Common Article 3 to 1949 Geneva Conventions which speaks of a non-international armed conflict in the territory of one of the parties is regarded as requiring only the fighting takes place at least on the territory of one party to the Geneva Conventions. On this, see Hamdan v Rumsfeld, 542 US 507 (2004); Lubell, N, ‘The War (?) Against Al-Qaeda’ in Wilmshurst, E (ed), International Law and the Classification of Conflicts (OUP 2012) 432–3; D Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’, in Wilmshurst, ibid, 72.

60 Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) para 70.

61 Prosecutor v Tadić (Trial Judgment) IT-94-1-T (7 May 1997) para 562.

62 Prosecutor v Limaj and others, Case No IT-03-66-A, 30 November 2005, paras 94–134; Prosecutor v Lubanga, No ICC-01/04-01/06-2842, 14 March 2012, paras 536–538.

63 Art 1(2) of Additional Protocol II of 1977; Prosecutor v Musema (Appeals Judgment) ICTR-96-13-A (16 November 2001) para 248.

64 Musema, ibid.

65 Prosecutor v Haradinaj and others Judgment (Trial Chamber) IT-04-84-T ICTY (3 April 2008) para 49; Prosecutor v Limaj et al. (n 62) para 90.

66 Musema (n 63) para 249.

67 See eg the ICRC's criticisms of the view that the international fight against terrorism constitutes a single, transnational non-international armed conflict: ICRC, ‘International Humanitarian Law and Terrorism: Questions and Answers’, 1 January 2011, available at <http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm#Dosomeaspectsofthefightagainstterrorismamounttoatransnationalarmedconflict>.

68 See eg Lubell, N and Derejko, N, ‘A Global Battlefield? Drones and the Geographical Scope of Armed Conflict’ (2013) 11 JICJ 65. Amongst the many pieces written on this issue from the perspective of drone strikes, see eg Blank, L, ‘Defining the Battlefield in Contemporary Conflict and Counter-Terrorism: Understanding the Parameters of the Zone of Combat’ (2010) 39 GaJIntl&CompL 1; K Anderson, ‘Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘‘Legal Geography of War’’’ (2011) Washington College of Law Research Paper No 2011–12; Daskal, J, ‘The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘‘Hot’’ Conflict Zone’ (2013) 161 UPaLRev 1165.

69 See Legality of the Threat or Use of Nuclear Weapons (n 34) para 25.

70 See Lubell and Derejko (n 68) 78 stating that where the individuals targeted by drone strikes are not members of the same non-State armed groups with which the targeting State is already in an armed conflict, ‘it will become necessary to show that a separate armed conflict exists between the state and the targeted armed group’).

71 Lubell and Derejko (n 68) (‘It is, however, highly questionable as to whether a one-sided drone strike can meet the threshold of intensity for armed conflict … It is therefore submitted here that drone strikes alone are unlikely to be sufficient for the determination of a NIAC and the ensuing applicability of IHL.’).

72 Prosecutor v Milosevic (Decision on Motion for Judgment of Acquittal) IT-02-54-T (16 June 2004), para 23.

73 Haradinaj (n 69) para 60.

74 <http://www.whitehouse.gov/the-press-office/2013/02/12/remarks-president-state-union-address>; Bradley, C and Goldsmith, J, ‘Congressional authorization and the war on terrorism’ (2005) 118 HarvLRev 2112, 2113.

75 Lauterpacht, H (ed), Oppenheim, International Law: A treatise (1935) 203, 206.

76 ibid.

77 ‘The [U.S.] administration's failure to define what specific organizational features or conduct would lead a group to be classified as an associated force raises concerns that this results in an aggressive and indefinitely expansive scope of targeting authority’: Amnesty International, ‘Statement of Shared Concerns Regarding U.S. Drone Strikes and Targeted Killings’, AI Index: AMR 51/017/2013, 6.

78 For what constitutes an armed group, see Haradinaj (n 65) paras 144–145.

79 Heller (n 11).

80 ICRC, ‘International Humanitarian Law and the challenges of contemporary armed conflicts’ (2011) 10ff.

81 Art 13(2) and (3) of Additional Protocol II of 1977. See also J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law Volume I: Rules (CUP 2005) Rule 6.

82 Art 13(2) and (3) of Additional Protocol II of 1977; art 50(1) of Additional Protocol I of 1977.

83 ICRC (Melzer), Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 27. See also Sivakumaran, S, The Law of Non-International Armed Conflict (OUP 2012) 359–62. Others adopt a different approach to defining membership of organized armed groups; see eg Dinstein, Y et al., The Manual on the Law of Non-International Armed Conflict: With Commentary (International Institute of Humanitarian Law 2006); Watkin, K, ‘Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance’ (2010) 42 NYUJIntlL&Pol 641.

84 ICRC, Interpretive Guidance, ibid 34.

85 ibid 46.

86 ibid 46.

87 Akande, D, ‘Clearing the Fog of War? The ICR's Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 ICLQ 180, 187.

88 ICRC, Interpretive Guidance (n 83) 53.

89 ibid.

90 ibid, 70. Certain States, including Israel and the US, have advocated a ‘continuous direct participation’ standard, arguing that the ‘for such time’ limit does not reflect what is required under customary international law. Such a view was rejected, however, by the Israeli Supreme Court: Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006) paras 12, 30.

91 ICRC, Interpretive Guidance (n 83) 65.

92 Decision of the German Federal Prosecutor of 20 June 2013, available at <https://www.generalbundesanwalt.de/docs/drohneneinsatz_vom_04oktober2010_mir_ali_pakistan.pdf >.

93 See eg Watkin (n 83).

94 ibid.

95 Art 50(1) of Additional Protocol I of 1977.

96 ICRC, Interpretive Guidance (n 83) 74.

97 Heller (n 11) 94ff distinguishing between ‘legally adequate’ and ‘legally inadequate’ signatures.

98 See generally Heller (n 11); Prosecutor v Simić, IT-95-9-T, Trial Chamber, Judgment, 17 Oct 2003, para 659.

100 Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, available at  <http://chrgj.org/wp-content/uploads/2012/10/Living-Under-Drones.pdf>.

101 Art 51(5)(b) of Additional Protocol I of 1977.

102 Art 57 of Additional Protocol I of 1977.

103 See eg Akande (n 59) 70–9 and Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition, 2016 (ICRC Commentary to GC I, 2nd edn), Commentary to art 2, paras 260–262.

104 Arguably, matters regarding detention of persons taken from the territory of the non-consenting State or strikes that result in damage to objects or the natural environment would be governed by the law of international armed conflicts because, though those matters may be connected to the non-international armed conflict, the fact that they affect the territory of the State means they are also connected to the conflict between the two States.

105 See Tadić (n 60) para 70.

106 Art 50(1) of Additional Protocol I I of 1977 (effectively defining civilians negatively, as all persons who are not combatants).

107 Art 51(2) of Additional Protocol I of 1977.

108 Art 51(3) of Additional Protocol I of 1977. The Israeli Supreme Court has held that this constitutes a rule of customary international law and is therefore binding also on those States not party to API: Public Committee Against Torture in Israel v Government of Israel, Supreme Court of Israel, HCJ 769/02 (13 Dec 2006), para 30.

109 ICRC, Interpretive Guidance (n 83) 82.

110 See Akande (n 87) 191.

111 See Schmitt, MN, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 3943 .

112 Schmitt, MN, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 VaJIntlL 795, 835.

113 Goodman, R, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 EJIL 819.

114 White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (23 May 2013).

115 Kaya v Turkey, App No 22729/93, Judgement of 19 February 1998, paras 86–92; UNHRC, General Comment No 31 (2004) para 15; McCann and others v United Kingdom, App No 18984/91, Judgment of 27 September 1995, para 169.

116 See the UN Office of the High Commissioner for Human Rights, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (recommended by the UN Economic and Social Council resolution 1989/65, 24 May 1989) para 16, and the companion UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (sometimes referred to as the ‘Minnesota Protocol’).

117 Melzer (n 11) 4.

118 United Nations, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 12 April 2011.

119 See Alston, P, ‘The CIA and Targeted Killings Beyond Borders’ (2011) 2 Harvard National Security Journal 287.

120 See the Case of Mapiripán Massacre v Colombia, Series C No 134, 15 September 2005, para 238.

121 Human Rights Council Resolution 9/11, Right to the truth, preamble para 1; General Assembly Resolution 61/177, art 24 (2); UN Commission on Human Rights, Resolution 2005/66.

122 Art 32 of Additional Protocol I of 1977; art 33 of Additional Protocol I of 1977; ICRC, ‘Commentary to the Additional Protocols of 1977’ (ICRC 1987) 350, para 1222; art 138 of the Fourth Geneva Convention of 1949.

123 See art 49 of the First Geneva Convention of 1949; art 50 of the Second Geneva Convention of 1949; art 129 of the Third Geneva Convention of 1949; art 146 of the Fourth Geneva Convention of 1949; art 85 of Additional Protocol of 1977; United Nations, Statute of International Criminal Tribunal for the former Yugoslavia, UN Doc S/RES/827 (1993) art 2; United Nations, Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994) art 4; 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90, art 8(2)(a).

124 Second Turkel Commission Report, ‘The Public Commission to Examine the Maritime Incident of 31 May 2010’ 256.

125 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (‘ICCPR’) art 6(1); American Convention on Human Rights (entered into force 18 July 1978) OAS Treaty Series No 36 (‘ACHR’) art 4(1); art 4 of the African Charter on Human and Peoples’ Rights; art 5 of the Arab Charter on Human Rights.

126 UNHRC, General Comment No 24, CCPR/C/21/Rev.1/Add.6, 10.

127 UNHRC, General Comment No 6: The Right to Life (1982) para 1.

128 See generally Prosecutor v Mrkšić et al. (2009) Appeals Judgement (IT-95-13/1-A).

129 See references above at n 129. Art 2 of the European Convention on Human Rights gives an exhaustive list of permissible grounds on which lethal force may be based.

130 Droege, C, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 IRRC 501, 525; Kretzmer, D, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 EJIL 171, 179.

131 Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 194 CETS (as amended) (‘ECHR’) art 2(2).

132 Art 3 of Code of Conduct for Law Enforcement Officials (General Assembly Resolution 34/169, annex, of 17 December 1979).

133 A/HRC/14/24, para 35.

134 McCann (n 115) paras 203–214; UNHRC, Suárez de Guerrero v Colombia, Merits (CCPR/C/15/D/45/1979) para 13.2.

135 See references to ‘imminence’ in the 2013 US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or an Associated Force’ (made public 5 February 2013) (although note the lack of clarity in the use of this requirement, discussed below) available at <http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf>; White House, U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, (23 May 2013) 2 (‘… the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons’) available at <http://www.whitehouse.gov/sites/default/files/uploads/2013.05.23_fact_sheet_on_ppg.pdf>; see also the discussion of whether a US drone strike in Yemen fell foul of the arbitrary deprivation of life prohibition in IHRL, in N Lubell, Extraterritorial Use of Force Against Non-State Actors (OUP 2010) 174–8.

136 The US White Paper on drones is an example where these categories of rules and the requirements under them are conflated, leading to an apparent misapplication of the imminence standard: see US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or an Associated Force’ (made public 5 February 2013); see a discussion of the ‘imminence’ requirement in the White Paper in KJ Heller, ‘The DOJ White Paper's Confused Approach Imminence (and Capture)’ Opinio Juris (Blog), 5 February 2013. The UK's more recent change of policy in targeting British citizens abroad using drones who are thought to be affiliated with ISIS also suggests some conflation in the government's invocation of self-defence: E MacAskill, ‘Drone Killing of British Citizens In Syria Marks Major Departure for UK’, The Guardian, 7 September 2015.

137 For an overview of the trend towards the consensus that IHRL continues to apply in situations of armed conflict, see Droege (n 130) 503–9.

138 Legality of the Threat or Use of Nuclear Weapons (n 34) para 25; Legal Consequences of the Construction of a Wall in the Occupied Territory, Advisory Opinion [2004] ICJ Rep 136, para 106; DRC v Uganda (n 31) para 216.

139 See eg art 4 ICCPR; art 15 ECHR; art 27 ACHR.

140 Legality of the Threat or Use of Nuclear Weapons (n 34) para 25.

141 Art 2(2) ECHR.

142 Milanovic, M, Extraterritorial Application of Human Rights Treaties, Law, Principles and Policy (OUP 2011) 254ff.

143 See European Court of Human Rights, Hassan v United Kingdom, App No 29750/09, Grand Chamber Judgment, 16 September 2014.

144 For a slightly critical reading of the judgment, see Hill-Cawthorne, L, Detention in Non-International Armed Conflict (OUP 2016) 158–9.

145 Melzer (n 11) 33.

146 US Department of Justice White Paper available at <http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf>.

147 ILC, ‘Articles on Responsibility of States for Wrongful Acts’ (2001) UNYBILC vol II, Pt Two, art 23.

148 Art 3 of the 1948 Universal Declaration on Human Rights.

149 Israeli Wall case (n 50) para 109.

150 Human Rights Committee, General Comment 31, CCPR/C/21/Rev.1/Add.13 (2004), para 10.

151 Coard et al. v United States, Case 10.951, Rep No 109/99, IACHR, 29 September 1999, para 37.

152 Al-Skeini v United Kingdom, App No 55721/07, Grand Chamber Judgment, 7 July 2011, paras 106–186; Loizidou v Turkey (1997) 23 EHRR 513; Ilascu v Moldoca and Russia (2005) EHRR 46, para 392; Al-Jedda v United Kingdom, App No 27021/08, 7 July 2011; Jaloud v Netherlands, App No 47708/08, Grand Chamber Judgment, 20 November 2014.

153 In art 2(1) ICCPR, the obligation of States is further limited to ‘all individuals within its territory’. However, since Lopez Burgos v Uruguay, Communication 52/1979, Views, 29 July 1981, the Human Rights Committee has held that State parties can also be held accountable for violations outside their territory. This is to be contrasted with the view of the US and Israel, whereby those States reject the extraterritoriality of the ICCPR: HRC, ‘Third Periodic Report: United States of America’, CCPR/ C/ USA/ 3, 28 November 2005, 109–11; HRC, ‘Second Periodic Report: Israel’, CCPR/ C/ ISR/ 2001/ 2, 4 December 2001, [8]. Other States, such as the UK, disagree: HRC, ‘Information Received from the United Kingdom of Great Britain and Northern Ireland on the Implementation of the Concluding Observations of the Human Rights Committee’, CCPR/ C/ GBR/ CO/ 6/ Add.1, 3 November 2009, [24].

154 This presumption may be rebutted, however, where the State is unable to exercise its authority over its territory.

155 See eg Human Rights Committee, General Comment 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004) para 10; Loizidou v Turkey, Preliminary Objections, 310 ECtHR, Series A, paras 62–64 (1995). See the discussion in Melzer (n 11) 155–67.

156 Ocalan v Turkey, App No 46221/99, Judgment, 12 March 2003, para 93; Issa and others v Turkey, App No 31821/96, Judgment, 16 November 2004, para 71.

157 Alejandre Jr and others v Republica de Cuba, Case 11.589, Rep No 86/99, IACHR, 29 September 1999, paras 23–25.

158 Bankovic and Others v Belgium, App No 52207/99, Admissibility Decision, Grand Chamber, 12 December 2001, para 82.

159 Al-Skeini (n 152) paras 106–186.

160 Al-Saadoon and others v Secretary of State for Defence [2015] EWHC 715 (Admin) para 106. This aspect of the decision was overturned in the Court of Appeal on the grounds that though it might follow from the Al-Skeini decision of the European Court of Human Rights, it is up to the European Court, and not domestic courts, to take the decisive step in spelling out this consequence from its decision. For comment on the High Court decision, see Goddard, DS, ‘Applying the European Convention on Human Rights to the Use of Physical Force: Al-Saadoon’ (2015) 91 International Law Studies 402.

161 See Meltzer (n 11).

162 See Droege (n 130); and Lubell (n 135) 227–31.

163 Milanovic (n 142) 209–21.

164 See the ECtHR in Al-Skeini (n 156)152 at para 137, holding (contrary to the Bankovic decision) that ‘Convention rights can be ‘‘divided and tailored’’ on separating and tailoring obligations in extra-territorial contexts.’

165 Milanovic (n 142) 209–21.

166 Issa and others v Turkey (n 156) para 71.

167 Hill-Cawthorne, L, ‘Just Another Case of Treaty Interpretation? Reconciling Humanitarian Law and Human Rights Law in the ICJ’ in Andenas, M and Bjorge, E (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015).

* This is a much expanded version of a report presented by Christof Heyns to the UN General Assembly on 25 October 2013, A/68/30532, available at <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-47_en.pdf> or <http://www.un.org/ga/search/view_doc.asp?symbol=A%2F68%2F382&Submit=Search&Lang=E>. We would like to thank the participants at the expert meeting on ‘Armed Drones and the Right to Life’ hosted by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations in July 2013.

** Professor of Human Rights Law, University of Pretoria and United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions; Professor of Public International Law, University of Oxford, Co-Investigator on the Individualization of War Project funded by the European Research Council and Yamani Fellow, St Peter's College, Oxford. Dapo is grateful to Franziska Oehm for her assistance with the preparation of this article; Lecturer in Law, University of Reading; Researcher, Institute for International and Comparative Law in Africa, University of Pretoria and Lecturer of Law at Midlands State University, Zimbabwe.

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